Reply To Motion For Abeyance

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

UAS AMERICA FUND, LLC,
SKYPAN INTERNATIONAL INC.,
PETER SACHS (individually and d/b/a
Drone Pilots Association), and FPV
MANUALS, LLC (d/b/a GetFPV and
Lumenier),
Petitioners,
V.
FEDERAL AVIATION
ADMINISTRATION,
Respondent.
THE ACADEMY OF MODEL
AERONAUTICS, INC.,
Petitioner,
V.
FEDERAL AVIATION
ADMINISTRATION,
Respondent.
Case No. 14-1156
(Consolidated with 14-1157 and
14-1158)
Case No. 14-1158
(Consolidated Under Case No.
14-1156)
OPPOSITION TO MOTION TO HOLD PETITIONS IN ABEYANCE
USCA Case #14-1156 Document #1516469 Filed: 10/09/2014 Page 1 of 15
(Page 1 of Total)
Petitioners UAS America Fund, LLC ("UAS America Fund"), SkyPan
International Inc. ("SkyPan"), Peter Sachs (individually "Sachs" and d/b/a Drone
Pilots Association), and FPV Manuals, LLC (d/b/a GetFPV and Lumenier) ("FPV
Manuals") in case no. 14-1156, and Petitioner The Academy of Model Aeronautics
("AMA") in case no. 14-1158 (collectively the "UAS/AMA Petitioners")
respectfully submit this Opposition to the Motion by the Council on Governmental
Relations ("COGR") in case no. 14-1157 to hold not just its own, but all of the
petitions in these three cases in abeyance.
The UAS/AMA Petitioners appreciate COGR's suggestion of a possible
clarification of the FAA's Order, 1 but respectfully disagree that an agency's post-
promulgation comment period is analogous to a petitioning party's motion for
reconsideration, that there is any "more detailed expression" that can resolve the
underlying legal dispute, or that the UAS/AMA Petitioners, whose petitions were
filed separately asserting differing concerns about the Order but that were
consolidated on the Court's own motion, should continue to suffer harm and
threatened enforcement while the FAA engages in an open-ended comment review
process.
1 The "Interpretation of the Special Rule for Model Aircraft," 79 Fed. Reg. 36,172
(June 25, 2014).
- 1 -
KL3 2990527.1
(Page 2 of Total)
A. No Motion for Reconsideration is Pending
The premise of COGR's motion is that an agency's invitation to
accept public comments after publication of a final rule is "functionally similar" to
the situation in which one petitioner has moved for reconsideration of an agency
decision while others wish to proceed with judicial review. See COGR Motion at
3. There is no motion for reconsideration pending here, filed by any party. Rather,
the FAA has issued a final rule, designated as such in the Federal Register, that
Order has been deemed to be effective immediately, and has already been
circulated nationwide to the agency's inspection and enforcement personnel with
instructions on enforcement. See Petition Exhibit 2 2 (indicating that the
"audience for this notice is all regional Flight Standards divisions (RFSD) and
Flight Standards District Office (FSDO) aviation safety inspectors (ASI). The
secondaly audience includes headquarters (HQ) Flight Standards Service (AFS)
policy divisions responsible for implementation.").
Although the FAA provided a post-promulgation period for public
comment, which is now closed, COGR itself has not submitted any comments
seeking clarification of any provision of the Order. See COGR Motion at 2 n. 2.
Of course, neither COGR nor the FAA has to date suggested that the
Order is non-final or was not ripe for judicial review at the time COGR filed its
own petition. On the contrary, COGR's own motion papers are premised on a
- 2 -
KL3 2990527.1
(Page 3 of Total)
view that the dispute is final and ripe, as reflected on the last page of its motion,
asserting that if the FAA delays in responding to comments during the proposed
abeyance period, that the Court should proceed with "immediate judicial review"
even in the absence of any additional agency action. COGR Motion at 4.
The primary authority relied upon by COGR in its motion, Teledesic
LLC v. FCC, 275 F.3d 75 (D.C. Cir. 2001), compels denial of the instant motion.
In Teledesic, this Court noted that abeyance is "not an iron-clad rule" and "decided
not to hold in abeyance Teledesic's petition for review of the Report and Order,
even though other parties had petitioned the Commission for reconsideration." Id.
at 83. Moreover, this Court noted that "Whe fact that parties other than Teledesic
petitioned the FAA for reconsideration of the Report and Order does not deprive
the court of jurisdiction over Teledesic's petition." Id. at 82. See also MCI
Telecomms. Corp. v. FCC, 143 F.3d 606, 608 (D.C. Cir. 1998) (proceeding with
judicial review despite the filing of petitions for reconsideration by some parties).
COGR does not cite any authority for the proposition that it has standing to file a
motion to hold other parties' petitions in abeyance in separately-filed cases. See,
e.g., Winter v. ICC, 851 F.2d 1056, 1062 (8th Cir. 1988) ("in multi-party
proceedings, one party may seek judicial review of an agency decision while
another party seeks administrative reconsideration, resulting in both tribunals
having jurisdiction.")
3
KL3 2990527.1
(Page 4 of Total)
A fortiori, here, in the absence of any actual reconsideration petition,
where one party simply proposes to wait an undetermined amount of time for the
agency to contemplate public comments, the Court should not hold other parties'
petitions in abeyance. COGR's request is quite different from what it characterizes
as the Court's "longstanding practice," Motion at 3, because it would allow any
party even one who has not moved for reconsideration or even submitted
comments to hold up the remedy of judicial review that other petitioners are
entitled to, simply because of the mere possibility that the agency might one day
issue a superseding rule. See Appalacian Power Co. v. EPA, 208 F.3d 1015, 1022
(D.C. Cir. 2000) ("The fact that a law may be altered in the future has nothing to
do with whether it is subject to judicial review at the moment.").
The FAA should not be permitted to issue a rule, together with
national enforcement guidance premised on that rule, and then block or delay
judicial review merely by soliciting post-promulgation comments that the agency
may never act on. Nor should a party enable the same result by requesting a delay
on the same premise. The calculus might be different if the FAA had indicated
that it would withhold enforcement pending its review of comments, but not only
has the FAA not said that, but the Order has already been distributed throughout
the agency for enforcement purposes. Absent assurance that the FAA will not
4
K.1,3 2990527.1
(Page 5 of Total)
enforce the Order, the UAS/AMA Petitioners are impacted today and judicial
review should proceed apace.
B. The Abeyance Will Lead to Indefinite Delay
Although COGR' s request for abeyance contemplates 90-day "status
reports," there is no proposed schedule or mechanism for resuming judicial review
if the FAA simply does nothing. Nor has the FAA established a timeframe for its
consideration of public comments. With over 32,000 comments submitted, there is
no reason to believe that any such consideration will conclude in 90 or even 180
days. Given the slow pace of progress by the FAA in this area of rulemaking in
general, the granting of this motion is simply an invitation to indefinite delay. 2
Unlike a motion for reconsideration, in which an agency can be expected to grant
or deny the motion, there is no requirement that the FAA respond at all to the
comments, ever. Also unlike the reconsideration situation, in which an agency
decision or order might in some cases be stayed pending the outcome, the FAA has
not indicated that it will withhold enforcement. The result is untenable for the
UAS/AMA Petitioners: new regulatory restrictions that impact them today, under
2
Indeed, the FAA has been working on a regulatory framework for so-called
unmanned aircraft systems since at least 2005, and a planned notice of proposed
rulemaking since 2008 (if not earlier). The FAA Modernization and Reform Act,
which the Order purports to interpret, was enacted in February 2012, but nearly
two and a half years passed before the issuance of the agency's June 25, 2014
"interpretation" of the section of that statute that is at issue here.
- 5 -
KL3 2990527.1
(Page 6 of Total)
threat of enforcement, while their only remedy, judicial review, remains
suspended.
C. There is No Agency Clarification That Will Resolve The Dispute
COGR suggests that an abeyance will result in a "more detailed
expression of the agency's position on important issues." Motion at 2. However,
as to this particular agency order, no additional clarification or modification of any
provision will cure the fundamental legal flaw that the Order constitutes invalid
legislative rulemaking in the guise of an "interpretation." The section of the 2012
FAA Modernization and Reform Act that the Order purports to "interpret" is
directed only to the FAA and constitutes nothing more than a restriction placed by
Congress upon the agency's future rulemaking: "the Administrator of the Federal
Aviation Administration may not promulgate any rule or regulation regarding a
model aircraft" that satisfies certain criteria. Pub. L. 112-95 336 (2012).
The FAA has turned this Congressional rulemaking prohibition on its
head by issuing an Order imposing new rules and restrictions on both recreational
and commercial model aircraft operations, all in the absence of rulemaking
compliant with the Administrative Procedures Act. No "more detailed expression"
of the specific new prohibitions contained in the Order will compensate for this
fundamental defect that can only be cured by granting the petitions and vacating
the Order in its entirety.
6
KU 2990527.1
(Page 7 of Total)
D. Abeyance Will Result in Hardship to the UAS/ANIA Petitioners
The request to hold the Petitions in abeyance should also be weighed
against the substantial harm to the UAS/AMA Petitions that will result from the
delay. See Devia v. Nuclear Reg. Comm'n, 492 F.3d 421, 427 (D.C. Cir. 2007) (in
deciding whether to hold case in abeyance, Court "must also consider the hardship
to the parties of withholding court consideration") (internal citation and quotation
marks omitted).
The Order has caused, and will continue to cause, substantial harm to
the UAS/AMA Petitioners. As just a few examples:
SkyPan has experienced a severe impact to its business, as long-
standing real estate developer clients now refuse to engage the company for
photography services in the wake of the Order. 3 The Order was followed by the
FAA's issuance of investigatory subpoenas directed to some of SkyPan's clients
demanding documents relating to its photography services, signaling that the FAA
plans to enforce the Order.
Petitioner Sachs has, prior to the June interpretation, used a small
model aircraft equipped with a camera to assist a fire department in securing the
3 The Order specifically declares "photographing a property or event and selling
the photos to someone else" to be unauthorized commercial use of a model aircraft,
and therefore prohibited. 79 Fed. Reg. at 36,174.
- 7 -
KL3 2990527.1
(Page 8 of Total)
scene of a dangerous quarry fire, among other non-recreational uses. The Order
purports to prohibit him from doing so again on the premise that operation of a
model aircraft is now prohibited for anything other than narrowly-defined
"hobbyist" purposes. Sachs also has, since the effective date of the Order, declined
offers to operate model aircraft for compensation due to the new purported
prohibitions announced in the Order. See, e.g., Exhibit A (email from Sachs to a
company inquiring about commercial photography).
Petitioner FPV Manuals LLC has suffered the resignation of a
sponsored model aircraft operator who operated the company's model aircraft for
testing and promotional purposes, due to the Order's purported prohibition on
compensation for model aircraft operation.
The AMA and its 170,000 members are impacted with various new
restrictions in their use of model aircraft both in terms of how and where they may
operate them, including a new requirement to obtain air traffic control
authorization in vast areas of the country, despite no such prior requirement and
the express Congressional prohibition on the promulgation of any such rules or
regulations. These restrictions do not just curtail recreational endeavors but also
threaten the long-standing educational and scientific benefits of model aviation. As
COGR has indicated in its motion, even research universities face "immediate
8
KL3 2990527.1
(Page 9 of Total)
hardship" imposed upon their teaching, research and scientific endeavors as a
result of the Order. COGR Motion at 3.
The Order also has a damaging impact on the nation's emerging
unmanned aircraft industry because it purports to prohibit all business-related
model operations, including component testing conducted for research and
development purposes. This disrupts the ability of investors such as petitioner
UAS America Fund to identify and provide crucial funding to high-tech startup
companies developing these technologies.
Moreover, because the Order and the agency's enforcement guidance
assert, incorrectly, that Congress in 2012 "define[d] model aircraft as aircraft" for
statutory and regulatory purposes under Title 49 and 14 C.F.R., the consequences
to the UAS/AMA Petitioners are severe. 79 Fed. Reg. 36,173 (June 25, 2014) and
Petition Exhibit 2 at !I 4. For example, under 49 U.S.C. 46306, it is a felony to
operate an aircraft without an aircraft registration or an FAA pilot's license.
For all these reasons, the dubious benefit of a delay is far outweighed
by the impact upon the UAS/AMA Petitioners of an indefinite withholding of
Court consideration.
9
KL3 2990527.1
(Page 10 of Total)
E. In the Alternative, The Court Should Set The Merits Briefing
Schedule Now and a Limited Period for FAA Comment Review
Should the Court nonetheless be inclined to hold the UAS/AMA
Petitioners' petitions in abeyance, as an alternative to COGR's open-ended 90-day
status reporting cycle, the UAS/AMA Respondents propose that the Court at this
time establish the briefing schedule, allowing a reasonable but not open-ended
period of time for the FAA to complete its review of the comments and issue a
superseding Order (if any) before the petitioners' opening brief is due, so that these
cases can proceed with minimal delay.
- 1 0 -
KL3 2990527.1
(Page 11 of Total)
Respectfully submitted,
KRAMER LEVIN NAFTALIS &
FRANKEL LLP
/s/ Brendan M. Schulman
Brendan M. Schulman
Eric A. Tirschwell
Selina M. Ellis
1177 Avenue of the Americas
New York, NY 10036
Tel: (212) 715-9100
Fax: (212) 715-8220
bschulman@krarnerlevin.corn
Attorneys for Petitioners UAS
America Fund, LLC, Skypan
International Inc., Peter Sachs
(individually and d/b/a Drone Pilots
Association), FPV Manuals, LLC
(d/b/a GetFPV and Lumenier) (Case
No. 14-1156) and The Academy of
Model Aeronautics (Case No. 14-
1158)
Date: October 9, 2014
KL3 2990527.1
(Page 12 of Total)
Exhibit A
(Page 13 of Total)
From: petersachs@gmail.com [mailto:petersachs@gmail.com] On Behalf Of Peter Sachs
Sent: Friday, October 03, 2014 6:03 AM
To: Joseph C. Balskus
Subject: Re: drone commercial services
Dear Mr. Balskus:
Thank you very much for taking the time to write and for your kind words about my
site. I appreciate your requesting my services to assist you with your traffic study. It
sounds like a drone would be the perfect craft to use for such a project. It would also
be far more cost effective than your only other option, using a full-size helicopter.
Although I would very much like to perform the flight you have described to assist you
with your traffic study, doing so would be considered a "commercial" operation under
the FAA's June 25 2014 "Interpretation of the Special Rule for Model Aircraft," and
would therefore be illegal. The FAA could bring an enforcement action against me for
making such a commercial flight. Moreover, since I also happen to hold an FAA-issued
commercial helicopter pilot's license, making such a flight would equate to flying an
"non-airworthy" aircraft, which violates FAA regulation and would put my FAA license in
jeopardy. (It is not possible for me to fly an "airworthy" drone because the FAA has not
provided any means for obtaining an airworthiness certificate for a drone intended to be
used commercially.)
So unfortunately I cannot (and no one else can) legally perform this flight for you using
a drone. You will have to use a full-size helicopter to do it legally. Unfortunately that will
be far more expensive for you, but the FAA has eliminated entirely the commercial
drone option.
In any instance I thank you for your request and wish you the best of luck with your
traffic study.
With regret,
Peter Sachs
Peter Sachs. Esq.
Low-Altitude Aerial Photography & Videography
Web: dronetoerapher,com
Mi: 203,871,3393
On Tue, Sep 30, 2014 at 2:35 PM, joseph C. Balskus <JCBa usatihehonc
Lcpm> wrote:
Peter, I have read about this UAS issue for a few weeks now as were considering purchasing a
UAS for our engineering field work. And then I found your website! I am hooked. Great
information and thank you for doing this.
(Page 14 of Total)
I am interested in retaining your services for a project we are doing involving a corridor study. I
actually have two projects. I am interested in your services which I would expect entail the
following:
Flying through a corridor, recording video of traffic operations along the corridor and at some
locations, hovering for 5-10 minutes. Depending on the corridor, you might need to do it in a
couple of shifts.
And then providing the video for my use.
Are you interested? And what kind of price point are we talking about so I can consider it in my
budgeting.
Thank you again.
Joe
Joseph C. Balskus, P.E., PTOE I Director of Traffic and Parking
I 213 Court Street, Suite 900 I Nliddletown, CT 06457 I 860.704.4760 I 203,482.0956 (cell)
www.tighebond.com I Follow us on: Twitter Facebook Linkedin
(Page 15 of Total)
CERTIFICATE OF SERVICE
I hereby certify that on October 9, 2014, the foregoing document was served
on the following counsel of record electronically through the United States Court
of Appeals for the D.C. Circuit's CM/ECF system:
Abby C. Wright
Michael S. Raab
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, D.C. 20530
Sean A. Lev
Gregory Gerber Rapawy
Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC
1615 M Street, NW
Washington, D.C. 20036
/s/ Brendan M. Schulman
Brendan M. Schulman
Counsel for Petitioners UAS America
Fund, LLC, Skypan International Inc.,
Peter Sachs (individually and d/b/a
Drone Pilots Association), and FPV
Manuals, LLC (d/b/a GetFPV and
Lumenier) (Case No. 14-1156) and
The Academy of Model Aeronautics
(Case No. 14-1158)
(Page 16 of Total)

Reply To Motion For Abeyance

Caricato da

Informazioni sul documento

Titolo originale

Copyright

Formati disponibili

Condividi questo documento

Condividi o incorpora il documento

Opzioni di condivisione

Hai trovato utile questo documento?

Questo contenuto è inappropriato?

Copyright:

Formati disponibili

Reply To Motion For Abeyance

Caricato da

Copyright:

Formati disponibili

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Potrebbero piacerti anche